This week on Legally Speaking with Michael Mulligan:
The Douglas Lake Cattle Company is the largest cattle range in Canada. It is owned by US billionaire Stan Kroenke, who also owns the Colorado Avalanche and the Denver Nuggets, amongst other things. The ranch is so large it completely surrounds two lakes that belong to the Province of BC. For years Mr. Kroenke has been trying to stop people, including members of the Nicola Valley Fish and Game Club, from fishing in the lakes.
The legal dispute concerning the public’s right to access the lakes involves the interpretation of an 1895 Crown grant of land that is now owned by The Douglas Lake Cattle Company.
The grant of land did not include the lakes, but there was a dispute concerning the ownership of a road that gets close to the lakes and a trail from the road to the shoreline.
Until recently the ranch had attempted to block access to the road by putting logs across it.
At trial the Nicola Valley Fish and Game Club was successful. The judge concluded that not only the lakes, and the road, but also the trail, were not included in the land grant and so remained accessible to the public.
In the Court of Appeal, however, The Douglas Lake Cattle Company was successful in persuading the three judges that the trail was included in the 1895 Crown grant of land.
As a result, while the lakes, and the road, are accessible to the public, there is no way to get to the lakes from the road.
In other provinces, there is provincial legislation that permits members of the public to cross over uncultivated land in order to access areas like publicly owned lakes. The British Columbia government should consider whether such legislation should be enacted, as it was urged to do by the trial judge.
Also on the show a recently introduced BC bill entitled the Firearms Violence Prevention Act is discussed. If passed, the legislation would, amongst other things, restrict the sale of “low-velocity firearms” to minors, and permit the impoundment of vehicles that have firearms or other items in them, when the person licenced to have them is not in the vehicle.
Several problems are apparent with the bill, as currently worded, include an error concerning the definition of “low-velocity firearms” which would inadvertently include all firearms, and the absence of an appropriate appeal mechanism for the impoundment of vehicles.
As discussed on the show, hopefully, the errors in the bill will be corrected during the legislative process.
Finally, a case involving a dispute over a will involving section 56 of the Wills, Estates and Succession Act is discussed.
This section provides that, subject to a contrary intention in a will, when spouses separate gifts in a will, and appointments as an executor or trustee, are revoked.
The court case discussed on the show involved a spouse, who separated from the deceased 18 months before his death, arguing, unsuccessfully, that she had not ceased to be a spouse.
In the case, evidence of the separation included a signed separation agreement, payment of child support, and the filing of tax returns by the claimant indicating that she was single.
The case is really a cautionary tale about the importance of updating your will when you are married, or separated, to reflect your wishes and to avoid unnecessary disputes.
An automated transcript of the show:
Legally Speaking Mar 11 2021
Adam Stirling [00:00:00] Time for Legally Speaking on CFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:07] I’m doing great, so thanks so much for having me. Always a pleasure to be here.
Adam Stirling [00:00:10] You and I have been following a fascinating case as it has worked its way through the courts with respect to whether it’s possible for a person to, in effect, buy a lake, by buying land all around the lake and then not allowing any person to traverse that lake, having the effect of making the lake itself private, despite what others may wish. And there has been an update on that story, hasn’t there?
Michael T. Mulligan [00:00:34] Indeed there has. And the last update we had on it was a David versus Goliath. But I guess sadly for all of the David’s out there, the latest from the B.C. Court of Appeal has reversed what appeared to be a victory for the Nicola Valley Fish and Game Club. And this has been a battle between the Nicola Valley Fish and Game Club, a small group of people, and the Douglas Lake Cattle Company, which owns the largest ranch anywhere in Canada. And it’s a company owned by a Stan Kroenke, who’s a U.S. billionaire who owns, amongst other things, the L.A. Rams. So rich guy owns an enormous ranch and for many years, Mr. Kroenke and the Douglas Lake Cattle Company have been trying to prevent people, including members of the Fish and Game Club, from accessing these two lakes, which are clearly, and everyone agrees, owned by the province. They’re public. But the ranch is so big it completely subsumes both lakes. You can’t get to the lakes without crossing the land of the ranch.
Adam Stirling [00:01:51] hmm.
Michael T. Mulligan [00:01:52] Now there is a road which goes near the lakes and then a trail which would go from the road to the lakes. And so, the Fish and Game Club was arguing that, hey, there’s a public right to access the public lakes. The fish are owned by the public, the lakes are owned by the public. How can it be that nobody can get to the publicly owned lakes? And they succeeded in that argument at trial, and it involved analyzing, the judge analyzing the original crown grant of land, which eventually was purchased by the enormous ranch, the billionaire.
Adam Stirling [00:02:32] Hmm.
Michael T. Mulligan [00:02:33] And so it involved looking back at maps, going back to 1895, which would show the then boundaries of the lake and where the road went and the trail and then analyzing whether what the crown granted included the road, the trail, the lakes, what was given up by the crown or what wasn’t. And unfortunately for the Fish and Game people, the Court of Appeal concluded the trial judge was mistaken in his conclusion about what all was kept by the provincial government. Essentially, the Court of Appeal concluded that, yes, indeed, the lakes were not given over as private property, the lakes and lakebed and fish and all of that is owned by the public. And indeed, the Court of Appeal found that the road which goes through the ranch again was not subject to that original crown grant. And moreover, the public has paid over various times to maintain and fix up the road. So, the public is entitled to use the road. And I should say in this regard, the billionaire and the giant ranch has done what they can to stop people from doing that. In the past, they put up a gate, which they eventually took down. They piled logs on the road. Those were apparently removed in 2019. And the Court of Appeal found that the public is entitled to use the road and the public is entitled to use the lake. But sadly, that sort of bit of cold comfort because the public is not entitled to use the trail to get from the road to the lake.
Adam Stirling [00:04:12] hmm.
Michael T. Mulligan [00:04:12] And so the upshot of this is that the billionaire and the enormous ranch can stop people from getting to the lake. Apparently, at one point, the ranch was offering people the ability to pay $100 a day to go fishing on the various lakes that are located within the ranch property.
Adam Stirling [00:04:37] Hmm.
Michael T. Mulligan [00:04:37] And the other interesting part of this is that the trial judge had indicated that unlike in other jurisdictions, British Columbia does not have clear public access legislation, which would allow the public to, for example, walk down the trail in other jurisdictions, that kind of legislation exists and so for land, which is not under cultivation, large portions of land, you would have the right to, for example, walk down the trail to get to the lake, but BC just doesn’t have that. And so, the Court of Appeal concluded that the trial judge was mistaken in his interpretation as to what was owned by the cattle company. And so, it’s now clearly over to the province of British Columbia to decide, do we want to keep the current state of affairs or should there be an amendment to the trespass act which would grant the public the right to do things like walk down the trail to get to the lake? The other, I must say, serious blow to the tiny Fish and Game club was that the trial judge had granted them costs for all of their efforts.
Adam Stirling [00:05:56] Yes.
Michael T. Mulligan [00:05:57] On the basis that they were public interest litigants, succeeded in getting the public access to these two lakes and the road and the trail. But sadly, the Court of Appeal found that the success of the Fish and Game Club was divided because, well, it’s clear the lakes are public, and you’re now allowed to drive down the road. Given the pile of logs has been removed, you can’t go anywhere on the road. And so, as a result of them not succeeding on the trail argument, the Court of Appeal reversed the cost order. So, the Nicola Valley Fish and Game Club is now on the hook for all of their legal expenses and indeed the cost of the appeal launched by the billionaire. And so terrible, bad day for the Fish and Game Club and a bad day for anyone wanting to go fishing on these lakes. So perhaps if you’re up in the area of the ranch, the very least you might want to exercise your, your public right to drive down the road. No doubt that would certainly help get the go to the Douglas Lake Cattle Company who really doesn’t want anyone coming on their property. So, you’re now free to drive back and forth on the road to nowhere. You just don’t have any way to get to the actual lake.
Adam Stirling [00:07:12] Is this matter settled or are there other avenues of appeal that either party could pursue?
Michael T. Mulligan [00:07:18] Well, you could seek leave to appeal to the Supreme Court of Canada, but boy, that’s an expensive undertaking. I don’t know how many members of the Nicola Valley Fish and Game club there are.
Adam Stirling [00:07:29] Indeed.
Michael T. Mulligan [00:07:29] But I think the practical where is over to next is province of British Columbia, are you going to do anything about this? The attorney general was a party to the litigation as there is this public element to it?
Adam Stirling [00:07:44] Yes.
Michael T. Mulligan [00:07:45] And so I think really the question is now over to the provincial government. Are you going to take the hint from the trial judge and others and pass some legislation which would provide a right to cross over uncultivated land like this trail so that people can actually get to the lake? Or as a matter of policy, you want to leave the status quo, which would mean, I guess, absent, you know, floatplane or something. You just don’t have any way to get there.
Adam Stirling [00:08:14] I was going to ask about air travel.
Michael T. Mulligan [00:08:16] Yeah, you could probably fly your plane in and land on the lake if that worked. One of the other arguments which didn’t succeed for the Fish and Game Club is that there’s actually some federal authority to navigate on navigable waters like the Fraser River, for example, if you own land on both sides, you couldn’t put up a chain and stop anyone from going down the river. Right. And so that was argued but it didn’t get traction because you have to look at whether it’s practical for people to be using that for navigation. And of course, at one point in the country, the ability to paddle your canoe down a river would be mightily important because really, that was the highway.
Adam Stirling [00:08:58] Yes.
Michael T. Mulligan [00:08:59] And so that’s the background of the legislation, which does grant the public the right to paddle your canoe down the river without having to worry about, you know, does the landowner and other side have they erected a chain or barrier trying to extract a toll from you or something? They can’t do that. You’re quite free to paddle your boat down to a place which meets that definition. But unfortunately, these two isolated lakes don’t really connect from anywhere to anywhere. They’re just lakes with a bunch of fish in them. And even though we all have a tiny share of the fish and the lakes, absent a floatplane, all you would be able to do would be drive down the now clearly public road and stare over at them. You don’t have any actual way to get over there and start fishing.
Adam Stirling [00:09:45] Let’s take our break. Michael Mulligan with Mulligan Defence Lawyers. We’ll continue with, Legally Speaking right after this.
Adam Stirling [00:09:51] And it’s Legally Speaking on CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers as we continue. Michael, new B.C. firearms legislation. Introduced, what are we seeing?
Michael T. Mulligan [00:10:01] Yes, so this is something introduced by the province of British Columbia and it’s separate from what’s been going on federally, where they’ve been trying to make some changes to buyback assault rifles and things of this sort. This piece of legislation is for the province of British Columbia and it’s a first reading bill which was just introduced by the solicitor general. The name of it, it’s bill 4 is the Firearm Violence Prevention Act, which is a pretty appealing title. Who in the world could be in favour of firearm violence? And there are a number of provisions in here which probably make some practical sense. There are prohibitions on things like selling low velocity firearms to minors. That’s probably a good idea.
Adam Stirling [00:10:52] Mhmm
Michael T. Mulligan [00:10:53] There’s a prohibition on not discharging a firearm from inside a vehicle or a boat because you don’t want people shooting off their boat or out their window in a car.
Adam Stirling [00:11:03] Was that allowed before?
Michael T. Mulligan [00:11:06] Apparently? We needed to ban that specifically. That reminds me of actually provision in the Wildlife Act that it reminds me of, which prohibits hunting while swimming, which seemed to suggest at first reading to me like, does that really mean somebody swimming and firing their gun? But no, no, it’s that one’s actually intended to prohibit shooting like a bear that swimming across the river rather than prohibiting you from shooting while you’re swimming across the river.
Adam Stirling [00:11:31] Okay, that makes sense.
Michael T. Mulligan [00:11:31] That took a couple of readings. So, this piece of legislation also does a number of other things. It tries to regulate things defined as a low velocity or imitation firearm.
Adam Stirling [00:11:44] Yeah.
Michael T. Mulligan [00:11:45] And I think what they have in mind here are things like pellet gun,.
Adam Stirling [00:11:48] yep.
Michael T. Mulligan [00:11:49] Airsoft, guns, things like that, that look a whole lot like a gun, and it could be very frightening. And there would be provincial offences for things like causing a disturbance you can’t carry or use or store an imitation or low velocity firearm, if this passes, in a way that would cause a disturbance in a public place like you couldn’t go down to, you know, Centennial Square and leave a pellet gun around. Right. Naturally,.
Adam Stirling [00:12:17] Yes.
Michael T. Mulligan [00:12:17] That might be rather disturbing to people. Now, there are a number of problems, I think, with the legislation. So hopefully people take the time, not people, MLA’s, take the time to read this thing over before moving along with the appealing title. They include things, like really problematic and contradictory definition of what is a low velocity firearm. As they currently written it up here, they’ve defined it to include anything which is not designed to fire a projectile at more than the speed 152.4 meters per second. But then there’s some confusing wording that also defines it as the thing which is designed to fire something at greater than that speed. So, these, I think, mistakenly drafted this to include to make the definition of a low velocity firearm include anything from a Red Rider BB gun to a military assault rifle. Not, I think, what was intended here. So, there are some, I think, draughting problems to be cleared up. I hope somebody is listening and takes a careful read of it before just passing it based on the name or general principles.
Adam Stirling [00:13:27] Yeah, I’m looking at it right now. How did that not get caught?
Michael T. Mulligan [00:13:31] I must say there’s legislation, if you read it, this is the sort of thing that keeps me well employed and busy every day of the week.
Adam Stirling [00:13:39] Fair, Fair.
Michael T. Mulligan [00:13:40] This is unfortunately not terribly uncommon, but that is a pretty glaring error in terms of how they defined it. The other, I think thing which needs some reflection before they pass something like this, some consideration to the need for fairness and a real review mechanism for some of the things.
Adam Stirling [00:14:01] Yes.
Michael T. Mulligan [00:14:01] Because one of the other concepts here is the idea that the police would be able to seize a vehicle and have it impounded for a period of time if there was a firearm in the vehicle where no one in the vehicle had the required registration for it. I think it’s intended to deal with things like, you know, there are a bunch of shady looking people driving around in a car and in the car the police discover there’s a, you know, gun in the trunk, but you can’t really establish, did any of the people know the gun was in the trunk?
Adam Stirling [00:14:35] Yeah.
Michael T. Mulligan [00:14:35] Whose gun was that? The idea would be, hey, you could impound the vehicle, I guess, or some deterrent to make sure you don’t drive a vehicle without checking to make sure that that isn’t there. The problem, with it, as I see it, is that there’s no meaningful provision to review that decision. And then even where the person produces material and persuades the police officer that they were mistaken. Like, for example, goes home and says, oh, yes, here is my registration certificate for the gun that was in the trunk, I was lawfully permitted to have that there and transport it and the officer agrees. Oh, yes, very good. OK, well, you can go get your car back. It indicates that the person still has to pay for the cost of the towing and the storage.
Adam Stirling [00:15:17] Mhmm.
Michael T. Mulligan [00:15:18] Which seems awfully unfair if it turned out what they were doing was completely lawful. It also seems problematic to me, that you would have that sort of authority to see somebody’s property without building in any kind of an appeal mechanism. Right. There should be some mechanism whereby some third party could review the police officer’s decision without requiring the thing to go to a judicial review in the Supreme Court, which, of course, is going to be an uneconomic and impractically slow remedy when the police have taken your car for a month or two. Right. And you’re waving around, here’s my certificate.
Adam Stirling [00:15:55] Yes.
Michael T. Mulligan [00:15:55] This isn’t fair. Give it back. You should have a meaningful mechanism for some third party to review the decision, and that should be in accordance with the nature of the decision. If you make it practically impossible for people, it leads to arbitrary outcomes and unfair outcomes, like requiring the innocent person who persuades the officer that they were mistaken and had everything that was required to nonetheless bear hundreds of dollars in towing and storage expenses. That’s just not right. And so hopefully somebody proofread this thing and cleans up the mistakes of it in the draft and gives some consideration to making it fair and putting in a mechanism so that if there a mistake that could be remedied without unduly expensive process.
Adam Stirling [00:16:44] So would these be criminal infractions or how would it work?
Michael T. Mulligan [00:16:48] Interestingly, no. This these would be provincial offences, but not criminal offences. The car thing is interesting because there’s actually currently an offence to be, a criminal offence, to be a passenger in a motor vehicle knowing that there’s like an unregistered firearm.
Adam Stirling [00:17:05] Mhmm
Michael T. Mulligan [00:17:05] There’s actually a very similar thing which was already there, but there would be higher standards of proof and so on. So, I think this is designed to allow sort of summary police activity,.
Adam Stirling [00:17:17] Yes.
Michael T. Mulligan [00:17:17] Like we’re taking the car because we found you had a, you know, improperly stored, you know, ammunition in the trunk or something. I think that’s the idea which, you know, maybe that’s okay public policy, but you have to be, you have to weigh up, you know, what do they say you could have fast, cheap, and good. You don’t want to have too much on the, you don’t want to give up too much of the sort of a fairness element of it in your rush to try to achieve some desirable objective.
Adam Stirling [00:17:47] Indeed, we have one more story to talk about. Five minutes left on the clock. It has to do with Wills and Section 56 of the Wills, Estates and Succession Act. If we’re done talking about the low velocity firearms.
Michael T. Mulligan [00:18:02] Yes, I think this is one that people should be aware of because it could affect a lot of people in a significant way. What happened here is you had a fellow, a young man, sadly, he was a member of the military. He and he passed away, sadly, in a car accident back in 2016. He was only twenty-eight. And what happened is that he had separated from his common law spouse. She’d moved away about 18 months prior to that sad passing. And the way the Wills, Estates and Succession Act operates is that, if somebody who is in a marriage like relationship for at least two years that qualifies a person becomes a spouse, but if you separate from your spouse, then provisions in your will, which would provide that they would receive a gift or be appointed as an executor, are invalidated by operation of Section 56 of the Wills, Estates and Succession Act. And so that’s what arose here. And what happened is that the service member’s mother would have wound up becoming the executor and presumably inheriting his assets and his former common law spouse was going to court to try to get those things, she wanted them. And so, it produced this litigation where the judge had to sort out, you know, was this relationship, in fact, terminated or not? And that could be messy. Here, I think there was a pretty clear evidence that the relationship was over, including that the person who was the claimant, the common law spouse, had moved away 18 months earlier to another location, that there was a written agreement confirming that they intended to separate, that there was a child that he was paying child support as required, that she filed income tax returns, saying that she was single. You know, it seemed pretty clear that this was over.
Adam Stirling [00:20:08] Yes
Michael T. Mulligan [00:20:09] She made arguments saying, well, look, you came to pay child support would come for events like Halloween and so on to spend time with his child. She tried to argue that that relationship was not over, but ultimately there was, I think, lots and lots of evidence that, in fact, it was. And so that’s the outcome there. The takeaways here include if you wind up getting married or relationship ends, you should pay some careful attention to your will and reflect upon the need to update it. Otherwise, you could wind up with this kind of a completely unsatisfactory circumstance where there’s ambiguity about was the relationship over what did the person intend, and you could wind up with a result that you really didn’t want. The other interesting thing about this case, just by way of a general note.
Adam Stirling [00:21:01] mhmm.
Michael T. Mulligan [00:21:01] Is it because the young man who died was a member of the armed forces. He had what was described as a military will.
Adam Stirling [00:21:09] hmm.
Michael T. Mulligan [00:21:09] And there are special provisions in the Wills, Estate and Succession Act that allow an active member of the Canadian Armed Forces, or indeed various other people, including an ally of Canada. There’s a good question. While on active service to enter into a will, doing away with some of the general requirements, like there’s no need for the will to be witnessed. It can be signed by the service member. And you’re contemplating here, of course, things like in times of war and somebody is in a foxhole writing out, you know, I want so-and-so to have my home. You want to give effect to those desires. And so that’s another interesting thing is that there are special provisions for active members of the armed forces to create a will which will be given effect even if you don’t have some of the things which you would ordinarily have, like people witnessing it. There, even provisions for military members so that you can have a will signed by another person, that has to be witnessed, where the armed forces member was unable to sign it. So, you can imagine some tragic circumstance where a person saying to their, you know, comrade, look, I want my son to get my car, write it down, sign it. That’s going to be given effect. So, the general theory of all these things is we try our best to give effect to what people want.
Adam Stirling [00:22:30] Yes.
Adam Stirling [00:22:30] But if you don’t keep your will updated, you could wind up with these unfortunate, confusing circumstances where there’s ambiguity in litigation. And so, you want to do your best to avoid that for your beneficiaries. So, if you get married or you get separated, update your will. That may save a lot of people a lot of grief.
Adam Stirling [00:22:48] Legally Speaking, on CFAX 1070 during the second half of our second hour every Thursday with Michael Mulligan from Mulligan Defence Lawyers. Michael, a pleasure. Thank you for your time, as always.
Michael T. Mulligan [00:22:57] Always a pleasure. Thank you so much for having me. Make sure you stay safe.
Adam Stirling [00:23:00] All right. We’ll do the thanks so much until next week.
Automatically Transcribed on March 12, 2021 – MULLIGAN DEFENCE LAWYERS